If the Commonwealth government, or a State or Territory government, or a large company has issued a tender and you are going to lodge a tender response to try and win work – you should read this.
What is in a tender?
Most tenders, if not nearly all of them, are issued with the terms and conditions of the tender (whether it’s called a Request for Tender, a Request for Quote, a Request for Proposal or an Expression of Interest) the specification or services to be provided and the draft contract that the successful tenderer will need to agree to if they win the bid. As part of the tender response process generally a party lodging a tender response can lodge a contractual compliance statement with the tender.
That’s great, thanks for telling me that, but how does that assist me?
Can I amend the draft contract?
In our experience many smaller tenderers don’t realise that the contract that is issued with the tender is a draft contract and can be amended by negotiation. However in nearly all circumstances if you want to negotiate that draft contract then you need to specify what changes you would like to make to the draft contract (if you were to win the work).
So how do you do that? Well you need to specify what changes you would make to the draft contract by completing a contractual compliance statement. The contractual compliance statement is then lodged with your tender response. That way the party that issued the tender is able to evaluate your service offering, your price and the changes you would make to the draft tender to determine if you should win the bid.
Contractual Compliance Statement – should I prepare one?
You should always lodge a contractual compliance statement, or a statement of compliance with your tender response because nearly all draft contracts that we have seen issued with a tender are drafted in a manner to protect the party that issued the tender (and are not designed to protect you)! You can correct this drafting imbalance (to some degree) in your contractual compliance statement.
How do we know this, well prior to forming the Contract Company we spent significant time working on large Commonwealth tenders:
- Airservices Australia – Air Traffic Control Tower Technology Project: replacement by Airservices of its integrated tower automation software @ $19m
- Airservices Australia – Enroute Radar Replacement Project @ $84m
- Department of Finance – Electronic Work Environment Project: implementation by Finance of a new work environment @ $29m
- Dimension Data – Defence Project JP2047: an upgrade by Defence of its terrestrial communications network @ $236.4m
- Airservices Australia – Advanced Surface Movement Guidance and Control Systems @ $15m
On that basis we are pretty certain that if its tender related – we can help!